“Why is a Bill of Rights Important?”
Round Table Discussion Questions and Answers Session
| Moderator: | Samuel Rose |
|---|---|
| Panelists: | Suzanne Bothwell - Director CRS |
| Prof. Jeffrey Jowell QC – CMI Consultant | |
| Gina Petrie – Ebanks – Director, DOE | |
| Wayne Panton – National Trust (NT) | |
| Carole Excell – Director, FOI | |
| Melanie McLaughlin – HRC | |
| Roberta Gordon – Director, SATC | |
| Alicia Dixon – Deputy Director, DCFS | |
| Insp. Anthony White – RCIPS | |
| Ben Tonner – CDBA | |
| Pastor Al Ebanks – Pastor & Past President, MA |
The following is a transcript of the questions that were raised, including questions from the audience, with the panelists on human rights issues along with the appropriate responses. The purpose of the panel discussion was to discuss the extent to which the Cayman Islands already operate in a culture of human rights. This also included an open floor discussion on some of the human rights issues that the public feel are important.
Q1: As residents of these Islands, is the protection of human rights relevant to your line of work?
FOI: With respect to freedom of information, freedom of information is recognized as a fundamental human right. The Cayman Islands’ Freedom of Information (FOI) Unit is implementing the FOI law that will come into effect in January 2009. This law guarantees your right to access of information with qualified exemptions. It is the touchstone of all freedoms, however, it should be balanced with the protection of people’s right to privacy.
DCFS: The department deals with the care and welfare of people that often are at their most vulnerable thus the department has a direct input in human rights. We deal with children, the elderly, and the disabled. We have to be their voice on many occasions and address all their needs.
In particular, we have fought for the rights of the disabled – easy access to building and the ability to get a job. We have also fought for the protection of children. Our country has major issues with physical, sexual and emotional abuse within the home. We advocated for a bill of rights for children. The welfare of children is paramount – it is not about what the parents want, because sometimes children are used as pawns. In short, we advocate for the rights of all as human beings.
DOE: The department provides advice to Cabinet and the Central Planning Authority (CPA) on the environmental impact of developments, we monitor species, ecologies and marine pollution (DOE is the first responder to an oil spill). DOE also advises on climate change adaptation.
The department sees the link between the environment and human rights as follows: The environment is all around us – land, sea and air. When the environment is degraded, it impacts us all. In our view the right to a clean environment is a basic human right.
NT: We have the same relevance as the Department of Environment. The National Trust was created 20 years ago to preserve the natural environment and heritage, to manage the assets in its care and to protect the fauna and flora of the Cayman Islands.
Conservation is a critical issue and the Trust would like to see the right to a clean, healthy environment enshrined in Cayman’s constitution.
HRC: Our primary goal is the protection and advancement of human rights. We prepare reports on human rights and work on public awareness.
CDBA: Human rights have an impact on court procedures as it involves the police and prisons. Human rights and justice goes hand in hand. Law abiding citizens should not be wrongly arrested, all want a fair trial, all want to be presumed innocent until proven guilty and the punishment should fit the crime. Without these human rights, courts will not be able to function properly and won’t be able to deliver fairness – which is the key objective.
CRS: Our role is obvious. We must carry out the Constitutional Modernization Initiative (CMI) and engage the public. Human rights and a bill of rights is one of the issues that we are highlighting. We must deal with the principal of human rights and what we think is important for us in Cayman to have in our constitution.
MA: We are concerned with freedom of religion, the right to life, family life, and personal freedoms. We are therefore involved with human rights on a daily basis. We believe God created us all equal. We also believe that with rights come responsibilities that we have to take seriously.
RCIPS: Human rights from a law enforcement perspective must include Prisons, Customs and Immigration. These agencies have a considerable amount of power to carry out the laws. The RCIPS is the coercive arm of government and protects the rights of citizens and protects the peace. It is a balance, because we also have to deal with the rights of the individuals.
A bill of rights makes it easier for us to know these individuals rights. Law enforcement must be careful not to intrude on the lives of individuals while enforcing the laws of a country. A bill of rights in this capacity helps to direct our efforts: It documents our powers and limitations, and serves as a good restraint for law enforcement.
SATC: We work with persons with disabilities. We have to promote the fact that these people have rights in the community. We have people who live in loneliness and fear, that can’t speak or fight for themselves – they need to function as much as they can. And they need rights. Over the past years we have been working towards protective legislation. These people might have limitations on their minds and bodies, but the biggest obstacle is the attitude towards them. We hope that a bill of rights will change this.
Q2: Do the Cayman Islands have the responsibility as a United Kingdom Overseas Territory (UKOT) and member of the international community to be human rights compliant. And if so, why?
CRS: Yes. Recalling the 1990 White Paper: Partnership for Progress and Prosperity that was published by the Foreign Commonwealth Office (FCO) which outlined the relationship between the UK and its OT’s – this document stated that the UK expected high standards of probity in governance and adherence to international agreements to which the UK and the UKOT’s are party to and to minimize the extent to which the UK is exposed to contingent liability.
Respecting the constitutional reform process, the UK recognized that each OT is unique and needs constitutional freedom. They expect this to form the base for democracy, human rights and the rule of law. Therefore, it is the responsibility of the UKOT’s to look at the issue of human rights. In the 1991, 2000 and current constitutional modernization efforts the issues of human rights keep resurfacing because it is the UK’s expectation that we include a bill of rights in our constitution. However, it is not only because ‘they say so’. It is also because we recognize that we have human rights issues.
Having a sound human rights basis is for example good for the economy: Investors look at the social status of a country asking: ‘Are there rules?’, ‘Is there investor confidence?’ Human rights within a bill of rights concern everything we do.
Q3: On the issue of gender equality, how can women’s rights be enshrined and how can discrimination against women be eliminated? (Question from the audience)
CRS: We recognize that over the decades there has been a firm decision internationally to make sure rights of women are protected – that they have access to education, shelter and basic services. Our government and the Governor are presently looking at adopting the Convention Eliminating Discrimination Amongst Women (CEDAW). They have already checked whether local legislation is compliant with the Convention. It is a multi-stage process however and we as citizens must enquire from our government on where they are with this. Gender equality is a relevant issue in our society and we have to look at what we have accomplished, but also what we still need to do.
DCFS: We have to recognize that if our women are okay, then our children will be okay. Our men are also important, but in the majority of cases women are the primary caregivers. They must have education, health services and other rights. If the mother is happy, the children will be happy and our future will be okay.
Q4: What is the template for Cayman’s bill of rights? What portion will be our perspective and what portion will be from the UK? (Question from the audience)
Prof Jowell: Cayman has everything to negotiate for. There is no reason that Cayman cannot create its own bill of rights. Some aspects of the European Union’s bill of rights that was taken into the UK’s bill of rights are absolute and you will find them in all bills of rights, such as freedom of expression, association – the civil and political rights. There is not much room for negotiation there – most democracies must have them.
There are other rights that I think will be based on this soil and that is part of the discussion process. You will have to work out what these rights should be, and tell the UK that it cannot impose any templates. I have a feeling that the UK will be very flexible on a bill of rights given that the basic rights are in there.
Q5: At present the Cayman Islands do have a bill of rights, but has a tradition of fairness. Is this adequate? And if not, what are the advantages to the inclusion of a bill of rights in our constitution?
CDBA: Yes, Cayman has a tradition of fairness. Just because there isn’t a bill of rights doesn’t mean that people of Cayman do not respect each other.
Perhaps a more important question is whether the tradition of fairness is enough? Some people might argue it is not. In some countries people don’t have the right to expression or to vote. In Cayman people have worked hard in the 19th century to win the right to vote and for women the right to vote was won in the 20th century. It is a hard won right, but it can be taken away. Once we have elected our representative we are stuck with them for four years. It is possible that some government – even a well meaning one – can take away some of these rights we assume to have. The way to safeguard our rights is to enshrine it in a bill of rights. However, people have to agree on what these rights are before they commit to it.
RCIPS: Even in the absence of a bill of rights – the police doesn’t function in a vacuum. We are not arbitrarily enforcing the law. There are some fundamental human rights that are already in some statutes that will stop us from ‘going too far’ when carrying out law enforcement duties. A bill of rights puts everything down together and then it can be engrained culturally.
DOE: As far as the environment goes Cayman doesn’t have a tradition of fairness. The tradition of fairness is one-sided – for instance the planning process is only fair to the applicant, but not fair to all citizens as there are limitations to the objections citizens can make to undesirable developments. A right to a clean, healthy environment must be included in a bill of rights.
MA: The local context is important. It is important that we ‘Caymanize’ the bill of rights. We have a different cultural, religious and social fabric. It is also important to know that a judge can strike down a law if he/she feels it violate the bill of rights.
CRS: These are real issues and that is why it is important to participate in the process. There are areas where we can negotiate for certain things and it is you, the citizens’, responsibility to tell us what you think – to have your say. We have to put a system in place in Cayman that will allow us as individuals or groups that wish to protect a right, to be able to go to a domestic court and file an application. Knowing that you can seek a remedy here (in Cayman) – that is the importance of a bill of rights. If you can have your case considered here first, then you have access to justice.
Q6: Are the people’s opinions going to be published in a formal document? (Question from the audience)
CRS: A public discussion paper is to be published soon. This document will formally raise constitutional issues that are relevant to us now. CRS will then request feedback from the public on this document because decisions can’t be made until we know what people of Cayman believe the direction is we should take.
Once these proposals are formalized, we will engage in extremely intense public consultation – we will visit all districts on all Islands.
Q7: The form of the current government is founded on the principle of the all powerful monarchy. We have seen all over the world the flaws of a parliamentary democracy. How much longer will we have this traditional government for? Shouldn’t we be moving to change the constitution to move towards a constitutional democracy with full separation of powers? (Question from the audience)
Prof Jowell: In the UK the King and Queen used to govern. Then parliament took over – that was progress as people could vote for the parliament. The UK is even now moving away from a parliamentary sovereignty to a constitutional democracy.
Q8: What kind of work is going into changing the laws that contradicts international conventions? (Question from the audience)
CRS: There is some work ongoing and it is the responsibility as citizens to make sure it happens and to lobby our representatives to keep it happening. For example, Cayman recently submitted a 200-page report to the Foreign and Commonwealth Office on its compliance with the United Nation’s Convention on the Rights of the Child. This will form part of the United Kingdom’s report to the United Nations. The Cayman Islands is under an obligation to publish the report and citizens must make sure they know the content of this report.
Note: Before a Bill of Rights is introduced in a country, it is customary that the laws of that country will be reviewed to ensure they are human rights compliant
Q9: In the absence of a bill of rights, the Cayman Islands has now extended permanently the individual right to petition to the European Court of Human Rights. What was the reason and does this negate the need for a bill of rights in the Cayman Islands?
HRC: I don’t know reason, and won’t get into that. What I can say that it is not enough. The right to petition to the ECHR is important, but not sufficient. Although this court is an important safeguard in the absence of a bill of rights, it is not a sufficient remedy of itself and doesn’t take away the benefits of a bill of rights.
The ECHR has some limitations: The breach against human rights must be committed by government – they must be the transgressor; the applicant must be the victim – no-one can petition on behalf of someone; and it doesn’t allow for any general complaints or complaints on behalf of a group.
Furthermore, it is only accessible after exhausting all domestic channels and there are severe delays – it can take up to two years for a case to be heard, and if can be costly.
Instead, a bill of rights will name and safeguards rights and it will be enforceable by local courts, making the process far more accessible and speedier. You will also have access to Legal Aid if you need it. Local courts will be able to offer a full array of remedies instead of just awarding damages.
Prof Jowell: A bill of rights will bring home your justice!
Q10: On the institution of marriage: Can it be defined as a union between a man and a woman? The EU Convention asks for no penalizing or discrimination against homosexuals. Does this require Cayman to allow gay marriage? (Question from the audience)
Prof Jowell: No. It will depend on how marriage is described in any given constitution or bill of rights. The British Virgin Islands for example described marriage as a union between a man and a woman, but they also said that there should be no discrimination against homosexuals.
It is absolutely the choice of each country how they want to go about it. The fundamental point is: While some might not approve, it is important to respect others for how they choose to live their lives.
Q11: How absolute are human rights? Can matters of national interest overrule them?
Prof Jowell: Some rights are absolute, like the right to life and no slavery. Other rights are not, for example the right to free speech and the right to privacy. The test for government – if they want to limit human rights – is: Is it justifiable in a democratic society?
Q12: Will human rights/ a bill of rights be retroactive where government will be asked to pay damages for past human rights offences? (Question from the audience)
CRS: It is something they will have to consider. They will have to weigh the liabilities and the contingencies – there could be a huge cost to something like this.
MA: The UK had set aside £ 10 million to train their judges, police and prison officials in human rights. We have to realize that this is a process and we should look at an incremental introduction so as to no tax the system too much. We first need to prepare the system for the new environment in which it is going to have to operate in.
Q13: How will the Constitutional Modernization Initiative (CMI) and a bill of rights affect the human services model in Cayman? (Question from the audience)
SATC: Everyday we see abuses and we see people neglected and ignored. We hope that a bill of rights will give backbone to what we try to do on a daily basis. It is critical to get the rights for vulnerable people enshrined in a bill of rights, because the ‘tradition of fairness’ discussed earlier, doesn’t apply to these groups of people.
We also need to keep in mind that with rights come responsibilities and we need to educate our population.